Tuesday, October 16, 2012

Lawyers retrained for Sharia-compliant wills

Invitations are currently being sent out to lawyers and other legal professionals to re-train them in how existing wills drawn up under the law of England and Wales should be amended in the light of Sharia. His Grace has absolutely no problem with this: most conservatives would agree that it is for individuals to order their private affairs and to determine the beneficiaries of their estates.

But when one religious group becomes exempt from legal precedent, it is apparent that the Law of England and Wales does not apply to all citizens equally.

This training seminar refers specifically to the 'automatic substitution clauses for grandchildren' and 'spouse exemption' as being two areas where the law of the land conflicts with the precepts of Sharia. Insofar as MBL Seminars list succession, IHT and trusts as further areas of focus, one may infer that lawyers are being trained to amend their practices for Muslim clients to ensure that Sharia inheritance provisions and taxation consequences take precedence over the Law of England and Wales.

Despite the Qur'an manifestly permitting women to inherit, we are likely to see developments in certain households of Muslim women not being able to draw up their own wills independently, or Muslim daughters being prohibited 'by the community' from disputing their parents' wills which have bequeathed an entire estate to her brothers. There are manifest gender and generational differences in Sharia inheritance which are antithetical to human rights and equality. And there are many more areas where the Islamic jurists and Quranic jurisprudence are 'in tension' with England's legal traditions and precedents, including issues of intestate, testamentary freedom, joint tenancy, superannuation benefits, etc., etc.

It is not clear from this seminar invitation which particular school of Sharia jurisprudence is being expounded. The main Sunni schools are the Maliki, Hanafi, Shafi’i and Hanbali schools. The main Shi’a school is the Ja’fari school, although the Zaidi, Ismaili and Abadi have their followers. His Grace is minded to assert that those who deliver the seminar won't have a clue.

The (soon-to-be-ex-)Archbishop of Canterbury predicted back in 2008 that ‘Shari’a law in Britain is unavoidable’, and we have seen a steady growth in Sharia courts and the the Government recognising polygamy in the benefits system.

Bishop Michael Nazir Ali has warned of the consequences of this. The Prime Minister pledged to oppose it: not only is it antithetical to many notions of British values, but the Sharia is opposed by many Muslim women.

But here we are, brazenly retraining the solicitors of England and Wales in how they must comply with Sharia inheritance law. This is an insidious attempt to reverse centuries-old legal precedents which hitherto have applied to all citizens equaly. It should be resisted with the greatest possible vigour.

NO way. If they are living in the UK a non Islamic country then they can't have sharia law and that means any aspects of it. They should have to abide by our laws if they live and die here. We must not capitulate.

YG you are under a serious misapprehension and have completely misunderstood a fairly innocuous event. The "precedents" to which the invitation refers are not in any way legally binding. The author is not talking about the binding law of precedent, stare decisis.

For generation will drafters (and indeed other drafters of all manner of legal documents) have relied on standard precedents to achieve some or other end. These have no binding status at all, they are merely what generations of previous drafters have considered a good way of achieving a desired end and have handed on to their colleagues, either within a firm or for a significant sum. The most common ones are the Enyclopedia of Forms and Precedents or Kessler's "Drafting Wills and Will Trusts (and Atkins Court Forms has an equivalent role in contentious work), but many law firms will have their own - as a barrister who drafts trusts and wills I created my own years ago and amend them from time to time.

All that the seminar is saying is that to an achieve an end compliant with sharia law as well as the law of the land a firm's existing precedent-book may well not work - and that established methods of minimising inheritance tax may not be sharia compliant either.

There is no suggestion here whatsoever that this would trump the law of the land, the whole point of a precedent is to produce something with minimal effort that complies with the law of the land and achieves the desired end.

You may be of the opinion that the giver of the presentation would not know which school of sharia law was which. I rather seriously doubt you are wrong (and given that people are named the assertion, going to a matter on which they hold themselves out as professionally competent, is not one I would like to make myself, indeed one might wonder if it verges on the defamatory, though I am not a specialist in that area.

Schoolboy error on the part of His Grace. The "precedent" referred to is not "the law of the land" or even "legal precedent," but a template from which wills are drafted by solicitors. There is no law of England and Wales on will-drafting from which the Sharia version might depart.

I have no idea what the quality of the webinar will be like, and have no intention of spending a hundred quid to find out, but it's not quite as brazen as HG fears.

I have to admit my knowledge of the probate law tapers out past the sixteenth century, so I may be entirely wrong - but I was under the impression that there are certain forms which are at the very least legally preferable even if they are not statutory. Though I know the basic barrier for what constitutes a legal will is a fair bit lower than solicitors would like us to believe it is.

If that is the case, then surely what is at issue here is not so much the principle of a "legal precedent", but rather the precedent of giving parity to what is a foreign system of probate, even if that parity is not constituted in statutory terms.

By way of example: "automatic substitution clauses for grandchildren" are not a requirement of an English will pursuant to the Wills Act or any other statute or decision. Their lack will not render a will valid, their presence will not render a will good (or bad). They *are* a commonly desired clause found in almost every precedent book (for those interested, because if a child to whom property is left predeceases the testator leaving children of his or her own, the gift will fail and the grandchildren receive nothing of the gift unless there is such a clause, a will speaks from death and if the legatee is not in existence at the death they will receive nothing).The point is that this kind of clause may not be sharia compliant (I wouldn't know myself).

Similarly the spouse exemption is a reference to the fact that gifts to a spouse in a will do not attract inheritance tax, which is a key feature of tax planning stratagems: sharia requirements may not allow this,. But you don't have to leave everything to your spouse, you merely get a tax exemption if you do (I pass over the complication of the Inheritance (Provision for Family and Dependants) Act 1975 in this context).

The line "may not be possible" is a bit of a dead giveaway: if the intention was as you suggest then nothing would be conceded as "not possible" because the law of the land would not be binding.

I am afraid that to any competent lawyer practicing in the area - ie the intended recipients - the meaning of this invitation - we receive many similar every week - would be obvious, non-contentious, and rather boring. Any lawyer who would profess themselves "very concerned" on receipt of such a document is not a lawyer to whom I would entrust my own affairs, being clearly out of touch, lacking in basic knowledge, and prone to panic (I do not suggest that such accusations would necessarily apply to non-lawyers, the document is aimed at those familiar with matters (and in need of CPD points - I require several such points by the end of December myself though frankly the price for 1.25 hrs sounds a bit steep to me.)

AnonymousinBelfast - I don't specialise in probate but did suffer through the mandatory module on the LPC. As long as it's properly signed and witnessed, made by a person over 18 of sound mind, it's valid: there is no form.

As to parity with foreign systems, the libertarian in me says that the state should have no part in dictating a person's division of his or her affairs, whether that person makes decisions which are palatable to me or not. And that applies whether it's Sharia and excluding female inheritors or misanthropy and leaving everything to the cats' home.

Of course, the problem is that no seminars are being held to teach lawyers how to leave everything to the family cat. A seminar indicates a certain level of demand for Sharia-compliant wills. A one-off will wouldn't attract attention. But this indicates a growth trend. And how could any indicator of the growth of Sharia observance be a positive thing?

"As to parity with foreign systems, the libertarian in me says that the state should have no part in dictating a person's division of his or her affairs, whether that person makes decisions which are palatable to me or not. And that applies whether it's Sharia and excluding female inheritors or misanthropy and leaving everything to the cats' home."

I tend to agree with this principle too, it must be said. I can also understand why solicitors find it advisable to brush up on Sharia to better suit the needs of potential clients - no particular foul there. In many ways, it's rather like the Beth Din courts (I hope I've spelt that correctly).

The only difference is that whereas the Jewish system does indeed exist for private communal regulation, there are strains of Sharia that expressly advocate the expansion into all branches of law. Consequently, whilst one can end up overplaying the "danger", even perhaps to the point of going into the unpleasant territory of believing Muslims to be far more objectionable as a group than many of them actually are, there is still room to exercise caution about a foreign system that represents a potential challenge to our own.

I like our system where there is considerable lattitude in how one arranges one's affairs - but that's the point: at what point does the presence of Sharia threaten that freedom? (That's a question for reflection, not a rhetorical one, by the way - overblown conspiracy theories help nobody).

It's extremely easy to leave everything to a cat's charity - I have regularly acted for such - and there's no real need for a seminar.

Leaving everything to a specific cat is rather more difficult - well strictly speaking it's impossible but there are fairly well known ways to achieve a practically near-equivalent result. The Encylopedia of Forms and Precedents volume 42(1) Part 10 B(2)(i) 198 [6834] provides a suitable example for a pecuniary legacy for care of a cat that could readily be adapted to a residuary bequest, and see also vol. 42(1) Part 6 (A)(D)28 [4411] at clause 8 - a dog but I don't think any greater expertise is required to deal with dogs, indeed my own dog would take whatever is offered with gratitude whereas the cats would expect perfection as their due, so more care would doubtless be required.

Provisions compliant with sharia law require rather more detailed and specific knowledge. I think the most dedicated CPD borer would find it difficult to fill 1.25 hrs with material on legacies to animals.

I say Archbishop, one’s foremost opinion of what you’ve posted is legal types are exploring ideas of challenging ‘sharia’ wills. When the ladies are left nothing and Mohammed gets the camels. Usually a nice little earner behind our legal friends initiatives, what !

And what are we to make of your skillful use of legal legerdemain? That there are no seminars about leaving property to the family cat because it is commonly known among lawyers how to do so? Would it matter? In the whole of England in 2011, how many people wrote wills leaving everything to the family cat? Would the potential demand justify a cost of £99 not to mention a billable 1.25 hours?

You have done nothing but deflect attention from the main point. Demand is growing for Sharia-compliant wills, and lawyers are learning how to meet that demand ... uh ... serve their clients. The question to the legal profession is far more direct. Why is it helping instantiate such a barbarous system into law? It doesn't have to write such a will, you know. Any given lawyer could say "No, I won't do that. Go elsewhere."

Very brave lot to get involved, even if they are doing it for the love of the fee. They could end up with a bomb through the window, or assassination. One reads of such dreadful incidents in Pakistan where the family happily eradicate their own in inheritance issues. What chance does the lawyer have. This fellow wouldn’t want to put anybody off mind, {AHEM}.

Would it matter? I rather assumed it mattered to you because you wrote "Of course, the problem is that no seminars are being held to teach lawyers how to leave everything to the family cat." Or were you merely gibbering randomly?

The 1.25 hrs would by definition not be billable to anyone of course, they would go to the CPD hours each of us has to submit each year to retain our practising certificates and be paid for from our pockets as a business expense. Do you actually have the remotest clue what you are talking about?

Myself I am with his Grace: "most conservatives would agree that it is for individuals to order their private affairs and to determine the beneficiaries of their estates.". When asked to assist someone in doing so, whether in accordance with muslim law, Jewish law, feminist principles, or the customary law of Nigeria, in the course of my practice and not in breach of the general law, I will quite happily do so where I am competent, yes, and since it is how I earn my living I will expect a fee for it. I find the notion one should behave to the contrary bizarre and to some extent repellent.

The question to the legal profession is far more direct. Why is it helping instantiate such a barbarous system into law? It doesn't have to write such a will, you know. Any given lawyer could say "No, I won't do that. Go elsewhere."

1) It's not helping anything into law; as said above, there is no law on drafting wills. It's helping an individual client arrange their affairs as they please.

2) Not if they wish to comply with the Solicitors Code of Conduct, they can't. (Well, they could say they don't have capacity to act, but they can't say "I'm not drafting your will in accordance with your wishes because I find your religious views repellent.")

The example of the cat mattered to me only as an example of something that would not warrant any investment of time and money. It illustrates by contrast the push behind this seminar. People don't put on seminars unless there is sufficient demand. People won't attend them without an expected return on their investment. And, yes, I know quite well the 1.25 hours would not be billable. That was rather the point. The 1.25 hours represented opportunity cost. So at the last we end up where we always knew we would arrive. "I can make money writing wills like this."

This man resides in the Islamic town of Gloucester. Tens of thousands of them live here. What you fellows don’t realise is the making of wills would be among the items kept ‘in house’ so to speak. Within their own community. If a white man advertised offering legal advice with an Islamic slant here, he would get no take up. The Islamic lawyers don’t advertise. No point, their community togetherness renders that unnecessary. The only scope is litigation, which their own people would may well baulk at. Now, you need to avoid upsetting these types. Really, you do...

My apologises if you are already familiar with this, but in respect of Jewish tradition and law/ Halakha, there is the principal following the diaspora called dina d’malchuta dina(the law of the land is the law of the land).

No doubt, when Islamic Sharia councils were recognised as Arbitration Tribunals under the 1996 Arbitration Act, and became part of the Alternative Dispute Resolution (ADR) procedure available to British citizens, lawyers assured us that when they clashed the law of the land trumped Sharia. And, of course, Arbitration Tribunals, could not cover family or criminal matters!

And, what’s happened? The whole thing has been abused and exploited by the extremist tendency in the Muslim community to such an extent that a Bill is proposed (by Baroness Cox) to stop things getting worse.* There are numerous reports and sources that catalogue this sorry tale.

I think our lawyers really ought get their noses out of their Precedent books and see what’s going on around them.

*Sharia councils are applying arbitration methods to Family mattersSharia councils misrepresent what they doUndue pressure on women and ignoranceSharia councils are involved in criminal mattersSharia councils infringe Human RightsThe men running Sharia councils have little understanding of the UK and hold extremist viewsOnly Civil and Family cases. Not!Socially divisive

"dina d’malchuta dina" has nothing to do with religious equality- it simply means the law of the land is the law of the land. In other words Jews are to follow and obey the law of the land that they are in, although if that law does conflict with Halakha, then there would be an argument to disregard such law; for example the banning of Jewish circumcision or a state law that said every citizen had to eat pork.

In which case I suspect that the majority of the Jewish population would, after using all legal and legitimate challenges to such law had been exhausted simply leave said country and go to Israel (a reason, why I am in favour of a strong Jewish state).

But I doubt that you would see Jews rioting in the street. Leave that to others...

Does anyone know if the Beth Din courts have authority over wills?They adjudicate over divorce and the like.If indeed they do, has not a precedent been set which will make it mighty hard to convince the Islamists that they should desist on this issue?

Beth Din courts in England deal with all aspects of Jewish law, such as Kosher certification of resturants and bakeries, overseeing conversions etc and (as distinct from Islamic law) can only be used by Jews and also Beth Dins only deal with civil and not criminal matters...

But, but,but these courts are voluntary, and therefore cannot enforce a judgement unless all sides agree as Beth Dins can't direct, say, the police or the power of the state on any judgement, so in effect as far as English law is concerned Beth Dins are places of arbitration.

Take divorce, a bet Din can issue a get (a Jewish divorce), but any divorce will still need to go through the usual channels in the English courts (like everyone else).

John Bolch at Family Lore has written sometimes on this subject. The trouble is not wills: the presumption is a person is free to order their own affairs (although there might be technical challenges).

The trouble is intestacy. For that we do have laws and they are at variance with Sharia. There has been concern that sharia panels have prevented intestacy divisions being carried out in accordance with UK law and prevented rightful claims being brought.

As I understand it, there was also lobbying to try to get default Sharia rules recognized so that claimants would literally be under different law if they happened to be Muslim rather than secular or any other religion.

Old Ernst feels that the majority are missing the point of this precedent? This is a thin edge of the wedge to introduce the legal profession to the idea of sharia as 'bona fide' despite the truth stated by Libertyphile as incompatible with our own laws. One only has to look at the large high profile firms such as Outer Temple to realise that it is extremely lucrative to be involved in sharia as in Abu Dhabi etc, as an expanding market of very profitable opportunities. As we now have a mass of Muslim prospects for these pariahs to feed off within our midst, it becomes possible to have a bunch of self obsessed/serving lobbyists being trained and seminar-ed to push for Sharia as an inclusion into English Law.

It will not be long before the MPs jump on the bandwagon as the old druid did?

Question: What do you call a lawyer with an IQ of 100?Answer: Your Honor.Question: What do you call a lawyer with an IQ of 50Answer: The Honourable member for.... Question: What do you call a lawyer with an IQ below 50Answer: The Right Honourable member for....

Your Grace, as a long time reader of your wise observations; it occurs to me that if by chance a Christian person felt badly done by in an inheritance dispute; he/she might convert to Islaam and have a better case under Sharia Law. What say you.Woodsy

I meant that the argument that all religions are equal in their contributions and presence in the UK clearly falls apart when one compares the attitude you've outlined on the part of the Jewish Beth Din, to the more aggressive strains of Islam that advocate Sharia not with respect for the law of the land but with an eye to overturning it.

In that sense, it was a riposte to the argument: "The Jews have Beth Din, why can't the Muslims have Sharia?" insofar as the basic attitudes behind the two are not equivalent.

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